Executive Order 13768 titled Enhancing Public Safety in the Interior of the United States was signed by U.S. President Donald Trump on January 25, 2017.[1][2] The order stated that "sanctuary jurisdictions" including sanctuary cities that refused to comply with immigration enforcement measures would not be "eligible to receive Federal grants, except as deemed necessary for law enforcement purposes" by the U.S. Attorney General or Secretary of Homeland Security.

Legal challenges to the order were brought almost immediately after its issuance by San Francisco (supported by the State of California) and a number of other cities and counties. In late April 2017, a federal court issued a nationwide preliminary injunction halting enforcement of the executive order, determining that the localities were likely to succeed on the merits of their challenge.

On November 21st, 2017, section 9(a) of the executive order was declared unconstitutional by Judge William Orrick III, who issued a nationwide permanent injunction against its implementation.[3]

During his campaign, Trump proposed the mass deportation of illegal immigrants as part of his immigration policy.[4][5][6]Jeff Sessions was confirmed on February 7 as Attorney General. Among his first statements, Sessions claimed that, "We need to end this lawlessness that threatens the public safety, pulls down the wages of working Americans."[7]

On August 31, 2016 Trump laid out a 10-step plan as part of his immigration policy where he reiterated that all illegal immigrants are subject to deportation with priority given to illegal immigrants who have committed significant crimes and those who have overstayed visas. He noted that all those seeking legalization would have to go home and re-enter the country legally.[8][9][10][11][12]

On February 8, 2017, Immigration and Customs Enforcement (ICE) agents arrested 36-year-old Guadalupe García de Rayos, when she attended her required annual review at the ICE office in Phoenix, and deported her to Mexico the next day based on a removal order issued in 2013 by the Executive Office for Immigration Review. The arrest prompted protests from her family and others[13][14][15][16] Immigrant advocates believe that she is one of the first to be deported after the EO was signed and that her case reflects the severity of the crackdown on illegal immigration.[17] ICE officials said that proceedings in Immigration Court had resulted in a finding that she did not have a legal basis to remain in the US.[18] In 2008, she was working at an amusement park in Mesa, Arizona when then-Sheriff Joe Arpaio ordered a raid that resulted in her arrest and felony identity theft conviction for possessing a false Social Security number.[17][19]

Section 5 of the order prioritizes removal of aliens who "have been convicted of any criminal offense; have been charged with any criminal offense, where such charge has not been resolved; have committed acts that constitute a chargeable criminal offense; have engaged in fraud or willful misrepresentation in connection with any official matter or application before a governmental agency; have abused any program related to receipt of public benefits; are subject to a final order of removal, but who have not complied with their legal obligation to depart the United States; or in the judgment of an immigration officer, otherwise pose a risk to public safety or national security."[20]

This provision of the executive order greatly expands the category of people classified as "priorities for removal," making all aliens who have been charged with a crime, or believed could have been charged with a crime, priorities for deportation.[20][21] The order expands to even those convicted of minor crimes, such as traffic offenses.[22] This marks a change from the Obama administration, which placed the highest priority for deportation on aliens who had been convicted of serious crimes.[21]

In furtherance of this policy, the Attorney General and the Secretary, in their discretion and to the extent consistent with law, shall ensure that jurisdictions that willfully refuse to comply with 8 U.S.C. 1373 (sanctuary jurisdictions) are not eligible to receive Federal grants, except as deemed necessary for law enforcement purposes by the Attorney General or the Secretary.[23]

It has been successfully challenged in the following cases, where it has been declared unconstitutional:[3][24]

Section 9(b) deals with the compilation and publication of information about immigrant crime.
Section 9(b)states:

To better inform the public regarding the public safety threats associated with sanctuary jurisdictions, the Secretary shall utilize the Declined Detainer Outcome Report or its equivalent and, on a weekly basis, make public a comprehensive list of criminal actions committed by aliens and any jurisdiction that ignored or otherwise failed to honor any detainers with respect to such aliens.[23]

While there is evidence that immigrants commit fewer crimes and are incarcerated at a lower rate than native-born Americans, there are very few studies of crime specific to illegal immigrants who are the targets of the order.[25][26] Critics say that the effort to publicize immigrant crime is an effort to skew public perceptions about crimes committed by undocumented migrants.[25]

Some historians have compared Trump's proposed list of crimes committed by immigrants to the Nazi Germany-era policy of publishing lists of crimes supposedly committed by Jews.[27] Historian Claudia Koonz of Duke University, an expert on Nazi Germany, said that the proposal was deeply troubling and that: "It's tough to make parallels when the scapegoat is so different. But the process is the same. The process was to exaggerate every piece of evidence showing the criminality of the targeted group. So even though it was atypical and not representative, by the media blitz that accompanied it, people began to see it as normal."[28] A number of commentators, including Amanda Erickson of The Washington Post, Christopher Hooton of The Independent, and Tessa Stuart of Rolling Stone also compared the policy of distributing list of criminal actions committed by undocumented immigrants to antisemitic Nazi propaganda that focused on crime in order to stir up anger and hatred toward Jews.[25][29][30][31]

The challenges are based largely on the Tenth Amendment to the United States Constitution. This amendment was the basis for the U.S. Supreme Court's decision in Printz v. United States (1997), in which the Court, in an opinion by Justice Antonin Scalia, struck down a law, held that the U.S. government cannot engage in "federal commandeering of state governments." While an emphasis on the Tenth Amendment has historically been championed by conservative jurists, the states and local governments challenging the executive order in this case reflect the amendment's use by liberals.[32]

A federal statute involved in the cases is section 1373 of title 8 of the United States Code. That section provides that "a Federal, State, or local government entity or official may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, the Immigration and Naturalization Service information regarding the citizenship or immigration status, lawful or unlawful, of any individual".

There are two serious constitutional problems with conditioning federal grants to sanctuary cities on compliance with Section 1373. First, longstanding Supreme Court precedent mandates that the federal government may not impose conditions on grants to states and localities unless the conditions are "unambiguously" stated in the text of the law "so that the States can knowingly decide whether or not to accept those funds." Few if any federal grants to sanctuary cities are explicitly conditioned on compliance with Section 1373.Any such condition must be passed by Congress, and may only apply to new grants, not ones that have already been appropriated. The executive cannot simply make up new conditions on its own and impose them on state and local governments. Doing so undermines both the separation of powers and federalism.Even aside from Trump's dubious effort to tie it to federal grants, Section 1373 is itself unconstitutional. The Supreme Court has repeatedly ruled that the federal government may not 'commandeer' state and local officials by compelling them to enforce federal law. Such policies violate the Tenth Amendment.[33]

California legal cases: City and County of San Francisco v. Trump, County of Santa Clara v. Trump, and City of Richmond v. Trump[edit]

On January 31, 2017 the City and County of San Francisco filed a civil action challenging the executive order on the grounds that it violates the Tenth Amendment of the United States Constitution with regard to State Sovereignty. San Francisco sued the Trump administration over the executive order requiring the federal government to withhold money from so-called sanctuary cities that protect criminal aliens from federal prosecution. The lawsuit filed in U.S. District Court in the Northern District of California alleges that Trump's order violates the Tenth Amendment, which states that powers not explicitly given to the federal government by the Constitution are reserved for the states.[40][41][42]

The civil suit alleges three causes of action (1) Declaratory Relief – San Francisco complies with 8 U.S.C.§ 1373, (2) 10th Amendment – 8 U.S.C.§ 1373(a) is unconstitutional, and (3) 10th Amendment – Executive Order Section 9(A) enforcement directive is unconstitutional. The suit seeks a Declaratory Judgment and Injunctive Relief holding that, (1) 8 U.S.C.§ 1373(a) is unconstitutional and invalid on its face; (2) Enjoin Defendants from enforcing Section 1373(a) or using it as a condition for receiving federal funds; (3) Declare that Section 8 U.S.C.§ 1373(a) is invalid as applied to state and local Sanctuary City laws, (4) Enjoin Defendants from enforcing Section 1373(a) against jurisdictions that enact Sanctuary City laws for legitimate local purposes; (5) Declare that San Francisco complies with Section 8 U.S.C.§ 1373; (6) Enjoin Defendants from designating San Francisco as a jurisdiction that fails to comply with Section 8 U.S.C.§ 1373; (7) Enjoin unconstitutional applications of the Enforcement Directive in Executive Order Section 9(a).[37]

On November 20, 2017, Judge Orrick issued a summary judgment that ruled Section 9(a) of the Executive Order was unconstitutional on its face and issued a permanent nationwide injunction against its implementation.[24] The judgment concluded:

City of Chelsea, City of Lawrence, Plaintiffs, v. Donald J. Trump, President of the United States, United States of America, John F. Kelly, Secretary of United States Department of Homeland Security, Dana J. Boente, Acting Attorney General of the United States, Does 1-100, Defendants.